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IN THE SUPREME COURT OF NEW ZEALAND
SC 102/2009 [2010] NZSC 135
RAYMOND EVEREST HESSELL
v
THE QUEEN
Hearing:9 August 2010
Court:Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Counsel:R M Lithgow QC, G J King and C J Milnes for Appellant C L Mander and J Murdoch for Crown
Judgment:16 November 2010
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS
(Given by McGrath J)
Table of Contents
Para No
Introduction............................................................................................................ [1] Charges, pleas and sentence.................................................................................. [2] Court of Appeal judgment.................................................................................. [10] Consistency and discretion in sentencing.......................................................... [23] Sentencing on guilty pleas: historical approach............................................... [28] The statutory requirements................................................................................ [34] Guideline judgments and the Sentencing Act................................................... [39] Allowing for guilty pleas in sentencing.............................................................. [45] Application of Court of Appeal’s judgment...................................................... [68] Conclusion............................................................................................................ [70] Disposition of appeal............................................................................................ [78]
Introduction
[1] This appeal concerns a judgment of the Court of Appeal which set guidelines on the approach to be taken by sentencing courts when a person charged with an offence pleads guilty.[1] A guilty plea has long been treated as a mitigating factor in sentencing and the Court of Appeal judgment confirms that is to continue. The judgment reiterates the well established principle that the earlier the plea is entered, the larger the reduction should generally be, and that principle is not in issue. The judgment, however, also sets out a prescriptively structured approach for sentencing courts to fix reductions in the sentences that would have been imposed if the offender had been convicted after a trial. The appeal to this Court puts in issue the prescriptive form of the guidance and the legitimacy of the courts establishing such a regime of sentence reductions for guilty pleas. The essence of the structure was that sentence reductions were determined according to a sliding scale with a 33 per cent reduction for a plea entered at the first reasonable opportunity at one end, and a 10 per cent reduction for a plea entered three weeks before commencement of the trial, at the other.[2]
[2] The appellant and his co-offender were charged with sexual offending against two girls aged 14 and 15. The co-offender was the mother of the 14 year old complainant. The offending took place on 22 September 2007 and both offenders were arrested and charged on 3 October 2007. Following a deposition hearing they were committed for trial in the High Court on 9 April 2008.
[3] The first call-over took place on 28 May 2008, when an amended indictment was filed. The co-offender pleaded guilty to the five counts she faced, on which she was jointly charged with the appellant. She was sentenced on 9 October 2008 to 12 months’ home detention and was subject to release conditions for six months.
[4] At the call-over the appellant indicated his intention…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Hessell v R [2010] NZSC 135
Case
[2010] NZSC 135
Decision Date
CaseChat Overview and Summary
In Hessell v R, Raymond Everest Hessell appealed against his sentence of two years and eight months' imprisonment for sexual conduct with a young person under 16 years of age. The appellant's co-offender had been sentenced to 12 months' home detention. The appellant argued that the Court of Appeal had erred in its judgment that gave guidelines on the approach to be taken by sentencing courts when a person charged with an offence pleaded guilty. The appeal was dismissed. The Court found that the Court of Appeal's approach placed emphasis on the importance of encouraging early pleas. This underlying principle meant that the Court had fixed discounts on a sliding scale according to the timing of the plea, having regard to the benefits delivered to the system. The Court found that the approach involved an inappropriate departure from the statutory requirement of evaluation of the full circumstances of each individual case. It also carried the unacceptable risk of pressuring persons to plead guilty to offences charged when they were not guilty. The Court of Appeal's approach had underestimated the complexity of the issue including the potential of the changes to impact on the protected rights of persons charged with criminal offending.